Contents

Enemy Combatants & habeas corpus

"Sen. Lindsey Graham (R-S.C.) sponsored an Amendment to the defense appropriations bill pending in the Senate (S. 1042) that would strip those designated by the Administration as enemy combatants of the ability to seek habeas review in federal courts. This is an end-run around the Supreme Court's decision in Rasul v. Bush which held Guantanamo detainees have the right to challenge the legality of their detentions," Talk Leftreported November 9, 2005.

"According to Graham's talking points for the bill" (which Talk Left received via e-mail), "his amendment would prohibit detainees from using the court to challenge": (as stated)

The legality of their detentions

The propriety of returning detainees to their home countries

Adequacy of medical care at Guantanamo

Quality of the food

Speed of mail delivery

Allotment of exercise time and other conditions of confinement

"This would effectively end all litigation brought on behalf of the detainees at Guantanamo Bay, as well as any future litigation on behalf of those imprisoned at the CIA secret detention camps. This bill is intended to have retroactive application," Talk Left wrote.

Definition

As defined by President Franklin D Roosevelt's proclamation number 2561, this definition applied to

all persons who are subjects, citizens, or residents of any Nation at war with the United States or who give obedience to or act under the direction of any such Nation and who during time of war enter or attempt to enter the United States or any territory or possession thereof, through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law or war....

... and Application

The power of the President to declare enemy combatants was not used until the aftermath of September 11, 2001. Once determined by the president to be an enemy combatant, persons may be held indefinitely and are subject to the jursidiction of military tribunals. Appeals or privilege to access to civilian courts is only granted to enemy combatants with the approval of both the Attorney General and Secretary of Defense.

Although the power to declare enemy combatants was upheld by the Supreme Court in 1942, it is currently under review (as of May 2004) and the future of this authority is unknown.

"It is the President of the United States who designates people as Enemy Combatants on information passed to him via the military or intelligence agencies. There is no right to appeal such a decision and no one is allowed to see the evidence for the designation. In effect it gives the President the power to indefinitely detain any US citizen without trial, charge or an explanation."

Rationale for Use by Bush Administration

"Under these rules, captured enemy combatants, whether soldiers or saboteurs, may be detained for the duration of hostilities. They need not be 'guilty' of anything; they are detained simply by virtue of their status as enemy combatants in war. This detention is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing enemy combatants from continuing their attacks. Thus, the terminology that many in the press use to describe the situation of these combatants is routinely filled with misplaced concepts. To state repeatedly that detainees are being held without 'charge' mistakenly assumes that charges are somehow necessary or appropriate. But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court and states in prior wars have generally not done so."

"In the run-up to the war on Iraq," Deputy Secretary of Defense Paul Wolfowitz "pushed a highly unorthodox plan to deploy one of the U.S. government's most controversial legal tactics--the designation of suspected terrorists as enemy combatants--in hopes of finding new evidence of alleged connections between Saddam Hussein's regime and Al Qaeda.

"The proposal ... called for President George W. Bush to declare Ramzi Yousef, the convicted mastermind of the 1993 World Trade Center bombing, as an enemy combatant in the war on terror. This would have allowed Yousef to be transferred from his cell at the U.S. Bureau of Prison's 'supermax' penitentiary in Florence, Colo., to a U.S. military installation," they write.

It was Wolfowitz's contention, they inform, that "U.S. military interrogators--unencumbered by the presence of Yousef's defense lawyer--might be able to get the inmate to confess what he and the lawyer have steadfastly denied: that he was actually an Iraqi intelligence agent dispatched by Saddam to blow up the World Trade Center in 1993 as revenge for the first Persian Gulf War."

Isikoff and Hornball state that the "previously unreported Wolfowitz proposal--and the high-level consideration it got within the Justice Department--sheds new light on the Bush administration's willingness to expand its use of enemy-combatant declarations inside the United States beyond the three alleged terrorists, two of them American citizens, who have already been designated [as enemy combatants] by the White House."

Additionally, they write, it "underscores the persistence with which Wolfowitz and his allies within the Pentagon pursued efforts to uncover evidence of links between Saddam's government and Al Qaeda--a key, and still disputed, element in the Bush administration's case for war."

Isikoff and Hornball also point to Washington Post reporter Bob Woodward's new Plan of Attack (2004 book) in which "Woodward writes that at a Camp David meeting shortly after September 11, 2001, Wolfowitz, who was pushing for an immediate invasion of Iraq, 'estimated that there was a 10 to 50 percent chance Saddam was involved in the 9/11 attacks--an odd conclusion that reflected deep suspicion but no real evidence.'"

In spite of the fact that "President Bush has since acknowledged there is no evidence of any Iraqi involvement in September 11, ... administration officials, including Vice President Dick Cheney, continue to assert that there is abundant evidence of past Iraqi support for terrorism, including possibly the 1993 World Trade Center bombing."

Jennifer K. Elsea, "Detention of American Citizens," Congressional Record Service, updated March 15, 2004: "While the Fourth Circuit Court of Appeals has agreed with the Bush Administration that Congress authorized such detentions in its authorization for the President to use force against those he determines are responsible for the September 11, 2001, attacks on the United States, the Second Circuit recently held that Congress has not authorized such detentions. The Supreme Court has granted certiorari in both cases and will hear them together on April 28, 2004."

External links

"U.S. Circumvents Courts With Enemy Combatant Tag,"Human Rights Watch, June 12, 2002: "'To permit a government that is at war in one part of the world to place people in military custody without charges elsewhere in the world without demonstrating participation in the armed conflict would create a gaping and dangerous loophole to basic human rights guarantees ... Being an accused terrorist is not synonymous with being an enemy combatant. Otherwise, the president could detain and hold anyone without charges simply by labeling him a member of al-Qaeda.'"

"Al Qaeda suspect declared 'enemy combatant," CNN, June 24, 2003: "It was the second time since the September 11, 2001, terrorist attacks that Bush has transferred a defendant from the criminal justice system to more restrictive military custody, where he is afforded fewer rights."

Bill Vann, "Secret arrests and detentions. Bush invokes enemy combatant rule against defendants," wsws.org, June 25, 2003: "In the wake of a federal appeals court ruling earlier this month affirming the US government's right to conduct secret arrests, the Bush administration has announced a series of measures that significantly escalate the police-state powers it has assumed in the name of a 'war on terrorism'. ... The designation ... as an enemy combatant denies ... the right to a trial, placing [one] in legal limbo, without the right to a lawyer or the right to answer charges and evidence brought against [one]. ... subject to indefinite detention in a military brig, with the possibility of being brought before a military court at any time. Such a drumhead proceeding could result in a death sentence, with no right of appeal."

Larry Neumeister, "Bush Overruled on 'Dirty Bomb' Suspect," AP, December 18, 2003: "President Bush does not have power to detain American citizen Jose Padilla, the former gang member seized on U.S. soil, as an enemy combatant, a federal appeals court ruled Thursday."

"'Enemy Combatants' in Court,"New York Times Op-Ed, April 26, 2004: "The Supreme Court hears arguments this week in two cases involving Americans who are being held indefinitely, without the right to see a lawyer, simply because they have been designated 'enemy combatants.' The Bush administration, ignoring basic constitutional principles, argues that because the detentions are military decisions made in wartime the courts have no authority to second-guess them. These are historic cases that could shape the post-9/11 legal landscape for years to come. The Supreme Court should send a strong message that even during a war on terrorism, the government cannot strip citizens of their most basic rights."